Romo v. Hickok

871 P.2d 894, 264 Mont. 341, 51 State Rptr. 320, 1994 Mont. LEXIS 80
CourtMontana Supreme Court
DecidedMarch 28, 1994
Docket93-440
StatusPublished
Cited by2 cases

This text of 871 P.2d 894 (Romo v. Hickok) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romo v. Hickok, 871 P.2d 894, 264 Mont. 341, 51 State Rptr. 320, 1994 Mont. LEXIS 80 (Mo. 1994).

Opinions

JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Robert Allen Romo petitioned the District Court for the Fifteenth Judicial District in Roosevelt County to establish paternity, custody, and visitation rights for LaToya Patricia Hickok, a minor child. Tom Romo and Connie Romo joined in the petition to obtain rights of visitation. The Romos appeal from that portion of the District Court order awarding visitation to the grandparents and awarding supervised visitation to the father after his release from the Montana State Prison. We affirm the District Court.

The following issues are presented for our review:

1. Did the District Court err when it found that visitation at the prison was not in the child’s best interest?

2. Did the District Court abuse its discretion when it ordered that, after his release from prison, the father’s visitation will be supervised by maternal relatives?

3. Did the District Court err when it did not set a visitation schedule for the father after his release from prison, but merely provided that visitation would be permitted?

4. Did the District Court err by giving the mother absolute control over visitation by the paternal grandparents?

FACTUAL BACKGROUND

LaToya Patricia Hickok was born on February 24, 1991. Her parents, Tara Dawn Hickok and Robert Allen Romo have not married each other. On October 18, 1991, Robert was sentenced to ten years at the Montana State Prison, with seven years suspended, for two counts of burglary and one count of theft.

On April 9, 1992, Robert filed a petition to establish paternity, custody, and visitation rights as LaToya’s father. Tom Romo and Connie Romo, Robert’s parents, joined him in his petition to obtain the right of visitation as LaToya’s grandparents.

After undergoing blood tests, the parties stipulated that Robert was the child’s natural father. On November 20, 1992, the District Court appointed Pam Hodges of the Department of Family Services [344]*344guardian ad litem for the minor child, and further ordered that mental health evaluations and home studies be performed on Tara Hickok, Connie Romo, Tom Romo, and to the extent possible, on Robert Romo.

The District Court held a hearing on June 7, 1993, on the remaining issues of custody and visitation. The District Court’s July 2,1993, order granted sole custody of LaToya to her mother, which the Romos do not contest. The District Court ordered that LaToya not be required to visit her father at the Montana State Prison, but granted him supervised visitation after his release. With regard to Tom and Connie, the District Court recognized their right to visit their granddaughter, and in its order set forth the general parameters under which they could exercise that right.

ISSUE 1

Did the District Court err when it found that visitation at the prison was not in the child’s best interest?

The standard of review for custody and visitation is whether substantial, credible evidence supports the district court’s judgment. In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600.

The Romos argue that, before it could deny visitation with Robert at the prison, the District Court was required, on the basis of § 40-4-217(1), MCA, to find that such visitation would endanger LaToya. That section provides as follows:

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.

This Court recently stated in In re Marriage of Reininghaus (1991), 250 Mont. 86, 90, 817 P.2d 1159, 1161; cert. denied (1992), 112 S. Ct. 1497, 117 L. Ed. 2d 637, that:

Although § 40-4-217(1), MCA, requires a showing of endangerment [before the district court can place a restriction on visitation], we will not so narrowly interpret the statute so that the court is unable to design visitation that reflects the child’s best interests.

The Commissioners’ Note to § 40-4-217, MCA, states that with two important exceptions, the general rule to be applied in awarding visitation is the “best interest of the child” standard. It is only when the court deprives the noncustodial parent of all visitation, or when a custodial parent tries to restrict or eliminate a noncustodial parent’s [345]*345visitation, that the judge must hold a hearing and make the extraordinary finding of serious endangerment.

On July 2, 1993, when the District Court made its findings, Robert’s tentative release date from prison was September 1993. Considering the brief amount of time this provision of the District Court order would have an effect, we do not find that Robert was deprived of visitation. Therefore, we will apply the “best interest” standard.

At the time of the hearing, LaToya was approximately two and one-half years old. The distance from Wolf Point to Deer Lodge is approximately 469 miles. Connie Romo testified that the trip to the Montana State Prison in Deer Lodge would involve a five-hour flight in a chartered plane piloted by Tom Romo. Tara testified that she felt the prison environment would confuse and scare her young daughter.

Based on the young age of the child, the long distance involved, the environment in which visitation would take place, and the short time necessary for postponement, we conclude that there was substantial evidence to support the District Court’s finding that visitation at the Montana State Prison was not in the child’s best interest. Under the circumstances of this case, we hold that “reasonable visitation” does not preclude postponing the right of visitation until the parent is in a position to exercise the right without interfering with the child’s best interest. In so holding, we are not establishing a hard and fast rule with regard to parents who are imprisoned under other circumstances.

ISSUE 2

Did the District Court abuse its discretion when it ordered that, after his release from prison, the father’s visitation will be supervised by maternal relatives?

The Romos argue that Robert’s visitation should not be restricted. The proper standard to apply where the custodial parent seeks restriction of the noncustodial parent’s visitation is the serious endangerment standard. Commissioners’ Note to § 40-4-217, MCA. In applying this standard, the district court is vested with liberal discretion. See Reininghaus, 817 P.2d at 1161-62. In this case, there was substantial evidence in the record to support a finding of serious endangerment to the child’s physical, mental, or moral well-being, including Robert’s extensive previous drug use and chemical dependency, his dishonesty and antisocial behavior, his suicide attempts, and [346]*346threats of violence. We conclude that the District Court did not abuse its discretion when it required that Robert’s visitation be supervised.

However, the Romos argue that if supervision is necessary, that they should be allowed to supervise Robert’s visitation with LaToya.

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Cite This Page — Counsel Stack

Bluebook (online)
871 P.2d 894, 264 Mont. 341, 51 State Rptr. 320, 1994 Mont. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romo-v-hickok-mont-1994.